Doonan, Graves & Longoria, LLC
The End to "Free House" Decisions in Maine
Update:  Moulton Math Clarified

Reneau J. Longoria, Esq.

January 2024

The End to "Free House" Decisions in Maine

This week the Maine Law Court overturned the “one and done” foreclosure rule in Maine which had resulted in debtors receiving “free houses” since 2017 through miniscule, and frequently irrelevant, discrepancies in legitimate demand letters provided to debtors under Title 14 § 6111. The Law Court specifically found that such a rule, (which received its legitimacy under the Deschaine/Pushard cases) created an anomaly only for Maine cases so that if there was a technical defect in a foreclosure notice, no further action could be taken to enforce the note or mortgage. Maine has now joined the rest of America in declaring that a typo in a demand letter will not result in the debtor receiving a free house. Maine has waited with anticipation for the decisions in Finch v. U.S. Bank, 2024 ME 2 and J.P. Morgan Mortgage Acquisition Corp. v. Camille J. Moulton, Oxf-21-412 (Argued Nov. 1, 2022, and in which Doonan, Graves & Longoria, LLC filed an amicus brief asking for the Rule of Pushard to be reversed)The Law Court, as it said itself, is moving on from “casino-by-court”.

 Since Doonan, Graves & Longoria has waged these battles for decades, some perspective is helpful on how far we have come on this long journey. At one point Maine stood alone, in a number of respects, which seriously chilled lending, impeded servicing, and hamstrung loan sales. Maine had a singular perspective on evidence, which required that ALL servicers that had touched a loan must testify as to the related business records and Maine alone required non-existent probate estates to be joined as necessary parties.  Maine defense counsel even argued that law firms could not send acceleration notices under the Maine Statute. We fought these rules in both the State and Federal Courts and through the Jones, Needham and Keniston decisions confirmed basic business records exceptions to the hearsay rule, agency relationships apply to foreclosure matters, and fictional parties are not required to be named in foreclosure cases.

Finch, in essence, adopts the argument we made in our Amicus that the demand letter, in and of itself, does not accelerate the entire loan. There are a number of points that are very relevant in this 67-page decision that represents a sea-change in Maine Law. The Law Court suggests that sanctions may be used more frequently by trial courts for abuses in the foreclosure context. Additionally, there is clearly a risk that if a demand is defective any interest that accrues from the original default to the finding that the demand is defective is not collectable.

 Today we learned that Jimmy Stewart was right, you can succeed by fighting for what seems to be a lost cause. We will continue to fight for our clients. We will review pending litigation and outline strategic recommendations for all impacted files.

If you would like to learn more about this decision or our Default Services in Maine, Massachusetts and New Hampshire please reach out and contact our Business Development Lead, Beth Stillings, to set up time to discuss. bs@dgandl.com

"The Law Court, as it said itself, is moving on from 'casino-by-court'."

To read the full decision, please click the link below. 
2024 ME 2 Finch (maine.gov) 

Reneau J. Longoria, Esq.

By telling our stories we celebrate all of who we are - this is the beginning of my story . . . 

Indian Enough?

The day I read Chairman Gray’s letter putting a stop to those attempting, post-recognition of our Little Shell Tribe by the U.S. Government, to begin to draw lines as to who was and was not “Indian Enough”, my world view changed.  

“All Little Shell tribal members belong. We must all follow the Seven Grandfather teachings of Mnaadendimowin – Respect.” 

Wise words for all. 

Who is Indian enough? My story growing up, and the story of my brothers and sisters — and, more importantly, my father and his brother and sister — was a story of not being Indian enough. Or white enough. Or rich enough.  

My grandmother and her sister were removed from their homes to attend “Indian schools” to cleanse them in all of the ways recently highlighted by the historical narrative in the United States Supreme Court’s Concurrence in Haaland v. Brackeen. 

The Little Shell Tribe of Chippewa Indians of Montana is a federally-recognized tribe of Ojibwe people in Montana. My father passed in 2008 after The Little Shell Tribe of Montana achieved state recognition but before we were recognized federally on December 20, 2019.  There was no prouder moment for our ancestors and descendants than our recognition — except, maybe, when we stood outside the Civic Center in Great Falls, my brother and our children, having received our first Covid vaccination—feeling so grateful for what our Health Director, Molly Wendland, and our tribe, as a whole, accomplished in organizing our first vaccinations.  We would feel that pride again looking upon the “Heart” of Little Shell in the new Little Shell Health Clinic.  ‘Heart’ of Little Shell (montanafreepress.org)

 Our tribe’s federal recognition came at a time when we were on the brink of a worldwide pandemic. Federal recognition gave us the path and the tools, which, along with the time, the respect, the education and, frankly, the resources— we are finally able to move beyond.  

Beyond - takes one step at a time.  

Beyond - takes courage and a mindset and a desire to learn more; to understand more and, mostly, to listen more.  To listen and respect.  

My story is the story of my brothers and sisters, our children, grandchildren and, most importantly, our elders.   We were fortunate enough to be handed part of our personal story in notebooks printed by Aunt Alice, Aunt Grace, and Uncle Paul, all of whom were dedicated to telling our story in a way that would preserve it.  I was given this printed part of our story over 30 years ago and it has remained on my shelf. I have thought from time to time about how to tell the story.  My roadblock has always been the feeling that I am not “Indian Enough”.  Even as an enrolled member of the Little Shell Tribe, as the fairest skinned of my siblings and having lived most of my adult life “out east” and apart from my people, our people, I had an overwhelming feeling of not being on the inside. Who wants to know the story of a people from the “outside”?  The pandemic softened that fear. 

During Covid, I had the opportunity to take 42 weeks of Ojibwe in a virtual language class from an amazing woman in our tribe.  I took the beginning class - twice. The second time I was joined by my niece, Molly, who has gone on to seek her Masters in Native American Library and Information Science. What an amazing opportunity to begin to learn an ancient language with the next generation. My favorite word is annimouche - dog. 

We, my brothers, sisters, our children, our grandchildren and I, have shared parts of this story among us and now, I would like, humbly, to begin to share our story with you.  Our story is not in a chronological format —you may find that it is crazy random.  It has been inspired by formal learning, informal learning, experiential learning, and spiritual learning. Our story is marked by trials, tribulation, health, sickness, wealth, poverty and challenges none of us planned for but all of us overcame. Most of the time we have “turned chicken shit into chicken salad”, pain and tragedy into glory. Celebration and resiliency are our secret sauce.  

If our story is read by only one person, it will have served its purpose and I thank you for taking the time to read. You will see at the end there is no period. Because the story will continue to be told by not only each one of us, but by each one of you. Our hope is that this will begin more conversations as we are all truly
Métis . . . 

Miigwech.  Thank you.  

Remembering Grandpa Ouellette

By telling our stories, we celebrate all of who we are.  We celebrate by remembering and sharing - when the time is right for you, please share your story.

Reneau J. Longoria, Esq.

July 2023

You cannot have it both ways

When a Chapter 7 bankruptcy debtor receives a discharge of their debts, they are no longer personally liable for the payment obligations under the Mortgage Loan. Nevertheless, if the debtor plans to stay in the property, then the payments have to be made. On August 10, 2016, Deutsche Bank National Trust Company (“DBNT”) started a judicial foreclosure action to foreclose the Pitassi Mortgage in the Connecticut Superior Court.  At first the Pitassis did not initially appear to defend the judicial foreclosure action and, as a result, Default Judgment entered in favor of DBNT. On January 17, 2018, the Pitassis, through Counsel, filed a motion to Vacate and Open Judgment of Default and a Motion to Dismiss for Lack of Subject Matter Jurisdiction, to which DBNT objected.  The Connecticut Superior Court subsequently denied the Pitassis’ motion on June 8, 2018.  The Pitassis filed multiple appeals that were dismissed by the Connecticut Courts.

The Pitassis originally filed a Chapter 7 Bankruptcy Petition in 2011 and obtained their Chapter 7 discharges. The Pitassis’ initial Chapter 7 Bankruptcy Petition stated that they did not have any potential unliquidated claims other than those at issue in the matter of Kassi v. Chase Bank, which did not involve DBNT’s mortgage loan. On August 10, 2022, Kassiani Pitassi filed a second bankruptcy petition under Chapter 13 of the United States Bankruptcy Code, this time in Maine, however, her proposed plan did not provide for the payment of either of the mortgages on her very valuable, mortgaged premises in Connecticut, which were long in default.  Rather, Pitassi raised challenges to DBNT’s standing to enforce the mortgage loan in the non-standard provisions of her proposed plan. Because Pitassi obtained a discharge of her personal liability for the debt owed under DBNT’s mortgage loan based on the representation that she did not have any unliquidated claims related to the same, and Pitassi’s challenges to DBNT’s standing were previously rejected by the Connecticut Courts, the Bankruptcy Court refused to confirm Pitassi’s Chapter 13 plan as a matter of law based on Judicial Estoppel and the Rocker-Feldman Doctrine. See Ribadeneira v. New Balance Athletics, Inc, 65 4^th 1, 27 (2023); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

The Pitassis should be estopped as a matter of law from attempting to collaterally attack the Connecticut Superior Court Judgment in the Bankruptcy Court proceedings because they received the benefit of their Bankruptcy discharge, yet they still sought to challenge the Mortgage lien at issue in this matter as their initial attempts to do so failed in the Connecticut Courts. A debtor cannot have the best of both worlds. Courts should not condone the practice by a debtor of obtaining a Chapter 7 discharge of their personal liability and then remaining in the property or, in this case, collecting rents derived from an investment property, while they continue to challenge the lender’s ability to foreclose the mortgage lien thereon.

Pitassi Appeal Brief

“Absent any good explanation, a party shall not be allowed to gain an advantage by litigating on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory.” Ribadeneira v. New Balance Athletics, Inc,
65 F. 4th 1, 27 (1st Cir. 2023)

Reneau J. Longoria, Esq.

April 2023

Maine Foreclosures: Mortgagee’s Interest in Property is not
affected by the death of a Joint Tenant

On January 17, 2023, the Law Court invited amicus briefs on whether a “debtor” is an indispensable party in a foreclosure when the debtor is deceased, time for probate has passed, and the property is owned by a surviving joint tenant who is not liable on the note. That briefing will be argued Thursday April 6, 2023, in Augusta, Maine.

The Federal vs State conflict in the analysis of necessary parties to a Mortgage Foreclosure and Sale action as set forth in MTGLQ Investors, L.P. v. Alley, 2017 ME 145, 166 A.3d 1002, (“Alley”) in contrast with the U.S. District Court’s decision in Johnson-Toothaker v. Bayview Loan Servicing LLC, Civil Action No. 20-CV-00371-JDL, 2022 WL 3278883 (2022)(“Toothaker”) is the heart of the controversy.  The Alley Court reversed the Trial Court Foreclosure Judgment in favor of MTGLQ, sua sponte, and ordered that the complaint be dismissed without prejudice where it named neither the (deceased) debtor nor the debtor’s estate. In Toothaker, the District Court reasoned that because Maine is a title theory state, a mortgage is enforceable even if the note is not, and, it follows that the deceased debtor or his/her estate are not necessary parties to a foreclosure.

DGL submitted the attached Amicus brief taking the position that the Alley decision was incorrect, the correct parties were named and no more was required given the fact that one of the two joint tenants survived and was named in the foreclosure action.  The Plaintiff did not advance a claim on the Keniston Note and made it clear only an in rem judgment extinguishing the remaining joint tenant’s interest in the property was sought. There was no “missing party;” in fact, given the status of the joint tenancy, the naming of the heirs was superfluous and, as a result, the matter should not have been dismissed.  In a title theory state such as Maine, naming the remaining joint tenant is all that is necessary to foreclose the mortgage lien.  The mortgagee’s interest in the property was not impacted by the death of one of two joint tenants and no formal administration of the deceased tenant was required to foreclose the right of redemption and enforce its mortgage lien.  

Keniston Amicus Brief

We advocated for adherence to the fundamental principles of Joint Tenancy in a Title Theory State:  A mortgagee’s interest in property is not impacted by the death of one of two joint tenants and no formal administration of the estate of a deceased joint tenant is required to foreclose a right of redemption and enforce a mortgage lien.

Doonan, Graves & Longoria, LLC
Overcomes Defendant’s Attempt to Invoke the Rooker-Feldman Doctrine 
to avoid a Federal Claim for Possession

Reneau J. Longoria, Esq.

September 29, 2022

MAINE FORECLOSURES:
Is it time for a return to pre-2014 jurisprudence?

“On August 23, 2022, [The Law Court] signaled it may be time to reconsider the breadth and depth of the Deschaine and Pushard Decisions and to provide clarity both on what this Court intended in those decisions, and whether Deschaine and its progeny were consistent with Maine law prior to 2017 when decided.” [AB 5]

“In short, a residential, judicial foreclosure in a title theory state is, by statute, an action in equity designed only to remove the equitable right of redemption and should never have preclusive effect on subsequent foreclosures.” [AB 15]

“Like this Court’s decision in The Bank of New York Mellon v. Shone, 2020 ME 122, 238 A.3d 671, this case presents an opportunity to resolve the conflict between the Deschaine and Pushard precedent and prior decisions grounded in Maine title theory, See U.S. Bank Nat’l Ass’n v. Gordon, 2020 ME 33, ¶¶ 15-30, 227A.3d 577 (Horton, J., concurring) (outlining the recent departure from precedent dating back to the nineteenth century).” [AB 7]

We will keep you informed of the decision. Please reach out to schedule in-person or virtual DGL Knowledge Exchanges to discuss strategies on your particular cases during these changing times.

We think the time was right to respectfully advocate for a change in the law in the hopes of returning Maine to its roots in title theory.  We filed our Amicus Brief with that in mind.

Brian C. Linehan, Esq.

August 2022

FORECLOSURE BY ENTRY

Physical entry on the property, recordation of a Certificate of Entry and expiration of three year-redemption period = the third, independent path to foreclosure in Massachusetts

A defective contractual notice of default does not affect the validity of a foreclosure by entry.

In Emigrant Mortgage Company, Inc. v. Bourke, 2022 WL 3566832, --- F.Supp.3d --- (D.Mass. Aug. 18, 2022)(“Bourke II”), the U.S. District Court reviewed the potential effect that a defective contractual notice of default may have on a mortgagee’s foreclosure by entry and possession under G.L. c. 244, § 1. Following a failed summary process action for possession, which was dismissed on appeal as a result of defects in the mortgagee’s contractual notice of default that rendered the mortgagee’s foreclosure by exercise of the statutory power of sale void, see Retained Realty, Inc. v. Bourke, 2019 Mass.App.Div. 183, at *2-3, the foreclosure sale purchaser brought a subsequent action in the U.S. District Court seeking to recover possession of the foreclosed premises based upon the mortgagee’s foreclosure by entry and possession. Bourke II, 2022 WL 3566832, at *2. Unlike a foreclosure by exercise of the statutory power of sale, which is a remedy that is incorporated into the terms of the mortgage contract, a foreclosure by entry and possession is purely statutory. Cf. id. at * 4-5. Accordingly, the U.S. District Court determined that compliance with the terms of the mortgage – specifically the contractual notice requirement found in paragraph 22 – is not required to affect a valid foreclosure by entry and possession under G.L. c. 244, § 1. See id. at *5.”

 A link to an article in Massachusetts Lawyers Weekly about this matter has been linked below:

https://masslawyersweekly.com/2022/08/26/mortgages-res-judicata-foreclosure-by-entry/

“Foreclosure by entry . . . does not require the mortgagee to send a notice pursuant to ¶ 22 [of the mortgage contract] before making an entry for possession...  The Defect in the notice of default sent by Emigrant is thus irrelevant to the question of whether the plaintiffs may proceed with foreclosure by entry.”

Judge Gorton

Reneau J. Longoria, Esq.

January 2022

Doonan, Graves & Longoria, LLC (“DG&L”) is proud to announce that
Reneau J. Longoria, Esq. has assumed responsibilities as Managing Member, effective October 15, 2021.  Attorney Longoria previously managed the practice areas of Foreclosure, Litigation, and Bankruptcy.  As the Managing Member, she will continue to serve and support the attorneys and staff in the firm’s default, appellate and general practice in Massachusetts, Maine and New Hampshire, as well as assuming duties in the management of the business.  

Attorney Longoria’s dedication and energy has remained consistent from her first eight years in criminal practice wherein she held positions with the Department of Justice, United States Attorney’s Offices in Texas and Washington, the Rockland County District Attorney’s Office in New York and the Attorney General’s Office in Texas.  Attorney Longoria is barred in Massachusetts, Maine, New York, New Hampshire, Texas, Montana, the U.S. District Courts in Maine and Massachusetts, as well as the First, Second and Fifth Circuit Courts of Appeals and the U.S. Supreme Court.  Attorney Longoria joined the firm in 1996 and became a Member in 2001.

Attorney Longoria states that she is “passionate about leading the firm forward as we build on our success and continue to strive for ‘Excellence. Daily.’ in these changing times.”   Attorney Longoria explained, “the Pandemic presented many challenges to businesses world-wide and the Default Industry in particular.”
 “Our dedication to overcoming those challenges through innovation, resiliency and personal sacrifice, while protecting the health and safety of our staff and clients, demonstrates that, together, we have the strength for the next chapter in the firm’s history.”  “I believe our next chapter will be our best chapter yet and I plan to lead this firm forward from the Pandemic healthier mentally, physically and financially.”  “As a result of DG&L’s ability to adapt to the changes in the industry during the Pandemic, DG&L has, and will continue to distinguish itself, and provide our clients with exceptional legal service.” 

“Reneau is held in the highest regard by both the Bar and the Bench where she is a supremely effective advocate for our clients.  There is no doubt in my mind or soul that the firm’s future is in
excellent hands for many years to come.”

John A. Doonan